The Employment Battle

  • Microsoft sued Google for hiring Dr Kai-Fu Lee. Apparently Dr. Lee was the head of Microsoft Research's Beijing center and worked on speech recognition, interactive technologies, and surprisingly, search. Some later news shows that Google anticipated this before making the decision to hire him.

    I've seen lots of comments about this on various sites about this, most of them anti-MS and siding with the employee as "it's a free market", and "you should be able to work where you want". It really got me thinking about employment contracts, given my retention series recently, and how this should work.

    I've never had an employment contract, but I have signed NDAs and non-compete agreements. I even had to sign a patent agreement that anything I created would be part of the company, though I had that modified to allow me to write articles.

    My basic feeling is that, like everything else in the DBA world, it depends. 🙂

    It depends on what you're doing. In most of my jobs as an operations/production DBA, I don't think there's anything that should prevent me from leaving and going to work for anyone else. Following best practices, making things run well, solving issues, are all things that grow me and the company and we equally benefit from my work. Taking that knowledge to another company should be no big deal. Now if I used knowledge of flaws in security, then I'd be criminally liable for attacking a company, but that shouldn't have anything to do with my employment.

    On the research and development side, however, it's a little different. I think performing specific research is something that a company is pushing you for, then there is something to the idea that the company has something there. I'm not a big fan or work for hire in copyrights or patents and I tend to think that credit and rights should be shared at the very least, if not wholly given to the employee(s) who develop them.

    However the company needs some protection otherwise Cisco, Google, and Microsoft, among other big companies, would just offer large employment contracts to the main researchers at small companies instead of buying the company. Imagine them offering someone $1M in salary for a few years instead of spending $9M to buy the company.

    In this case, I think a 12 month non-compete is plenty, especially in technology. If Google wants to pay him to sit around for 12 months, not working on any search or other competing technology, I think they have that right. However, Microsoft should be able to supoena and sue at any time during that 12 months if he works on something that was spelled out in his contract with Microsoft.

    I just wish I was smart enough to actually be in this situation. 🙂

    Steve Jones

  • Steve,

    I think we as outsider don't really know if there was really an employment contract and it's detail between MS and Dr. ? or not, thus we could not say who is right or wrong.  In the past, I have as you stated, sign non compete, NDA and non switching company to competiter but usually it only govern for a 12 month period after terminating from the company.  I have no opinion on this subject.  I think it is really upto the lawyer to interprete what is in those contract, and of course who has the best arguments and persuasions to the judge will win the case.

     

    mom

  • Very true and I hope I didn't miswrite something. I thought I read in one of the many news items that there was a contract, but I could be wrong.

  • There was indeed a contract between Microsoft and the esteemed Dr.  As was pointed out, interpreting and debating the syntax and semantics of that contract will take teams of lawyers for both sides.  Incidentally, as a side note, the attorneys for both sides are the only real winners in this sort of discussion.

    I routinely encounter these and similar contractual clauses as a consultant.  The employers know that I am only going to be present for a specific amount of time, a specific project, and so on.  They have a legitimate concern that an unscrupulous person could easily take the results of a year long project to a competitor and duplicate the effort in one quarter of the original development time.  In concept, this is no different than if someone took the source code to a product and sold it to a competitor.  The negative impact of such an occurrence is huge.

    The fine line arises when discussing a person's right to work and utilize his or her prsonal and professional skills.  In general, the courts have held that a person cannot be prevented from working and tend to favor the side of the employee.

    As an example, I have experience in the utlity industry among others.  My knowledge of how gas and electric utilities operate is professional knowledge and I cannot be prevented from using the knowledge.  My detailed knowledge of the internals of a specific proprietary software package, and how the software package supports that firms operations is not open to discussion with any other firm for a specific period of time.

    As a consultant, this is a fine line that needs to be walked very carefully every day.  My personal perspective is that any firm that requests me to disclose proprietary information from a prior employer is not a place I want to work.  This situation has only came up once in my 25 year career, and I walked out of the building 30 minutes later.

    I'll shut up now.  Comments?  Thoughts?  Opinions?

    Have a great day!

    Wayne

  • The Infoworld article states that there was indeed an existing contract between Dr. Lee and Microsoft.  And while I don't always jump to MS's defense, I think their concern in this situation is legitimate.  In his position Dr. Lee would have had access to high level Microsoft marketing and development strategies and his hiring by Google would place him in direct competition with Microsoft in this area (although Google denies this).  At least that's how I read it. 

    It will be interesting to see what happens when the case comes to trial. 

     

    My hovercraft is full of eels.

  • Maybe not for MS/Google, but for most of us, I think the whole non-disclosure thing is harder for the employee than the companies.  I mean, most companies aren't going to come out and ask you to share information you shouldn't.  But when you know how (because you learned at a prior job) to make something better or some process more efficient, where do you draw the line?  Is it okay to use the methods you know as long as you don't share them with your coworkers?  Is it okay to tell your co-workers how to improve the quality or efficiency of their work as long as you don't tell management and make this new way company policy?  Do you really have to suck it up and do work that you know you could be doing better and/or faster?

    I've only had to sign one NDA in my career, and it really never came to this because after that job I switched fields entirely.  Because I haven't dealt with it personally, I really don't know how black and white the matter is, but should I ever go back to my old line of work I could see it being a real grey area.

    Any thoughts?


    Two muffins are sitting in an oven. The first one turns to the second and says "pretty hot in here, huh?"
    The second muffin glances at the first and then shrieks in fear,
    "AAAAAAHH!!! A TALKING MUFFIN!!!"

  • If the Dr. was important (I think we can draw that inference) MS will have had him sign an NDA, plus a long notice clause, plus a non-compete clause.  If not it is their look out.

    If that is the case then there is no real debate except as to whether all of this represents a restraint of trade.  If he follows the rules or gets his contract nullified due to restraints of trade legislation then he is free to work for Google.  In any event it is immoral to say he can never work for Google - he may have to wait but if Google are happy to wait they will eventually get their man (I assume it's a man).

    One of the developers in my office wanted to leave in January - but had a 3 month notice clause (no other restrictions).  He wanted to leave in 3 weeks time to join our main competitor and he had been working on our next generation internal back office system.

    The management turned down his request flat - and he simply walked out that day and didn't come back.  My company is pursuing him through the courts but for little more than compensation for excess holiday taken.  As a result of his leaving a series of changes to working practices have been implemented - based on comments he made to justify 'why he had to leave'.  Chatting is now frowned upon (30 developers in one room have never been so quiet), employees now have to clock in and out, leave is now requested (with an approval process) and so on.  I guess the part of MS that lost the doc will have been 'managed' as well.

    As I work for one of the biggest companies in the world (one of the top 10 biggest employers) I can understand why some big company management is better to work for than others.  Perhaps the doc preferred the look of the culture at Google.  The day a week of working-me-time may have been a big draw.

    Employees and employers often have conflicting objectives, when these conflicts are managed poorly then employees often leave.  Ask not why the doc was joining Google, but why he wanted to leave MS in the first place - pound to a penny it was because he was unhappy with the way he was treated.  If that is the case then why should anyone be forced to work where they are unhappy.

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